Burton and Repatriation Commission [2003] AATA 186 (26 February 2003)

Re Stewart-Moore and Repatriation Commission [1999] AATA 573; (1999) 30 AAR 29

Re Bennett-Post and Repatriation Commission [2002] AATA 600

1. This is an application by Dr P. Burton (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) made on 12 December 2001. This decision affirmed a decision made on 26 September 2001 that the applicant was not entitled to a Gold Card as he was not a "veteran" within the meaning of s5C(1) of the Veterans' Entitlements Act 1986 (the Act). A Gold Card gives the holder access to the full range of repatriation health-care benefits and provides for treatment of all medical conditions whether war-caused or not.

2. The hearing was initially conducted by telephone, and resumed later on the papers. The applicant represented himself, assisted by his wife. Mr R. Douglass, a Department of Veterans' Affairs advocate, represented the respondent. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). At the hearing the applicant lodged a folder of documents, and filed a number of documents subsequently. The respondent lodged a written report of Associate Professor J. McCarthy, an Australian Defence Force Academy historian, and filed a Statement of Facts and Contentions on 5 June 2002 and filed Further Submissions on 31 January 2003.

3. The applicant was born on 2 September 1921 at Madras in India, to an Australian father and English mother. Between the age of six months and approximately four years he lived in Australia with his mother, residing with Australian grandparents. He then lived and schooled in United Kingdom until 1934, when he joined the Nautical Training School TS Mercury at Southampton. His parents divorced before he entered the Nautical Training School. He served on British merchant ships during World War 2 (the war), in the Indian and Pacific Oceans, but did not serve on any Australian registered ships. Nor did he serve in Australian waters.

4. The applicant came to Australia after the war and served in the Australian Army from 1951 to 1953.

5. On 7 September 2001 the applicant made an application for a Gold Card (T3). On 26 September 2001 the respondent decided that, as the applicant had not been resident in Australia at the time relevant to the determination under the legislation, he could not come within the definition of A_ustralian mariner_ within s5C(1) of the Veterans' Entitlements Act 1986 (the Act). It is this definition that is one of the gateways to establishing entitlement to benefits for medical treatment provided for under s85(4A) of the Act.

6. When the applicant sought review of the decision, a senior delegate reconsidered it and affirmed the decision on 12 December 2001 (T2). On 5 March 2002 the applicant sought review by this Tribunal.

7. The applicant and his wife gave evidence that the applicant was aboard a ship picking up oil in Port Said (Egypt), when war was declared in 1939. The applicant said that when the ship entered the Suez Canal the captain called all Australian seamen together, and the applicant considered that he was recruited as an Australian. At T9, the applicant had stated that the first ship that he sailed on was the tanker British Prestige.. At the commencement of hostilities this ship was sailing to the Middle East and was in the Suez Canal. He said that always thereafter when signing on to ships he signed as an Australian mariner. He said during the war, at every port, he made an application to get back to Australia.

8. The applicant's oral evidence referred to his service on the MV Hupeh during the second half of 1944. He said that the British government leased this ship for the war effort. When serving on that ship, he said, he was paid by the Royal Navy and wore the insignia of a member of the navy auxiliary. The applicant said that MV Hupeh operated as a supply ship and carried ammunition supporting the Pacific Fleet departing from Trincomalee (Ceylon, now Sri Lanka). In regard to that evidence, Mr Douglass undertook to obtain a report by Associate Professor McCarthy, investigating the applicant's service on MV Hupeh. Professor McCarthy was unable to locate any reference to MV Hupeh as part of the British Pacific Fleet, nor was it listed in Orders of Battle.

9. In the report dated 24 October 2002, Professor McCarthy stated that while the merchant fleet did come under government control at the outbreak of war, the government did not usurp the function of the ship owners and sailed under the red ensign of the merchant navy and not the white ensign of the Royal Navy. He stated that merchant seamen remained civilians and did not come under military law, except if they came into an area of occupation administered by the military. He thought it reasonable to argue that the crews of such ships were not required to wear uniform or distinguishing insignia other than shipping company uniforms. There was no evidence of enemy air activity at Trincomalee, he said, and by June 1944, Japanese naval air power was largely destroyed.

10. In a letter dated 14 July 2002, the applicant's sister stated that the applicant had no permanent home in England during the war, though she herself lived with her mother and stepfather.

11. Mr Douglass submitted that a preliminary question in the matter was whether the Tribunal or indeed the senior delegate who had reviewed the matter on 12 December 2001, had the power to review the matters raised by the applicant. Citing Re Stewart-Moore and Repatriation Commission [1999] AATA 573; (1999) 30 AAR 29 and Re Bennett- Post and Repatriation Commission [2002] AATA 600, he said that if the question on review is whether the applicant is a veteran within the meaning of that term in the legislation, there is no right of review on that issue available under s57 and s175 of the Act, as the sources of the Tribunal's power. The Tribunal can only review a decision made by the respondent if there is specific power given to the Tribunal by legislation (s25(1) and s25(4) of the AAT Act).

12. Mr Douglass also made submissions on the question of whether the applicant met the definition of veteran under the Act and addressed the question of his residence and domicile prior to the war. Section 6A(1) of the Act provides that a veteran includes a person who is a member of the naval ...forces of a Commonwealth country ...who was domiciled in Australia ...immediately before his appointment or enlistment in those forces. Mr Douglass submitted that the applicant was not domiciled in Australia immediately before enlistment when he was a minor. After his parents' divorce, his domicile was to be determined by that of his mother. He also submitted that the applicant could not meet the definition of qualifying service under the Act, even if he established that he came within the definition of a veteran.

13. The applicant made extensive submissions to the Tribunal both before and after the hearing. The Tribunal reached its decision after taking into account the oral and written evidence and the submissions of both parties.

14. The first question to be addressed is whether the Tribunal has jurisdiction to review the question of whether the applicant is a veteran, as that term is used in s85(4A) of the Act. Section 175 of the Act is the source of the power of this Tribunal to review decisions under the legislation. That provides as follows:

(2) Where the Commission, under section 57B, affirms a decision of the Commission referred to in section 57 or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.

15. The decision of which the applicant seeks review entails looking at the meaning of two terms under the Act, namely the meaning of veteran and the meaning of qualifying service. Both are terms used in s85(4A) which states:

(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

(b) the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and

(i) the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or

(ii) the veteran has notified the Department in writing that he or she seeks eligibility for such treatment.

16. Qualifying service and veteran are defined elsewhere in the Act. Veteran is defined within s5C (1) of the Act as.

(i) who is, because of section 7, taken to have rendered eligible war service; or

(ii) in respect of whom a pension is, or pensions are, payable under subsection 13(6); and

(b) in Parts III and VIIC also includes a person who is:

(i) a Commonwealth veteran; or

(ii) an allied veteran; or

(iv) an allied mariner.

17. Qualifying service is defined in s7A of the Act. For the reasons given below, there is no need to set out all the provisions of s7A, suffice to say that in the applicant's case s7A(b), (g) and (h) may have arisen for consideration, if the applicant were able to satisfy the requirement of s85(4A) that he be a veteran as defined in the Act.

18. Section 7 of the Act provides the definition of eligible war service as used in paragraph (a) of the definition of veteran in s5C above:

7(1) Subject to subsection (2), for the purposes of this Act:

(e) a person who was employed on a ship as an Australian mariner is taken to have been rendering eligible war service:

(i) if part of that employment was operational service--for the part of that employment that was not operational service; or

(ii) in any other case--while the person was so employed.

19. Other relevant definitions are those for operational service, insofar as that extends to the service of certain Australian mariners through s6B of the Act; Australian mariner, as used in s7 and s6B, and defined within s5C(1); and allied mariner as used in s7A and defined within s5C(1). However it would seem, by the specific reference in the s5C(1) definition of veteran, that the Act's intention is to extend certain benefits to allied mariners for purposes of Parts III and VIIC only. The provision for a Gold Card in s85(4A) appears in Part V of the Act.

20. It was the respondent's submission that the evidence showed that the applicant was not resident in Australia in the twelve months prior to the time that he entered an agreement or indenture for service. This means that he could not satisfy the definition of Australian mariner in s5C as that requires that the mariner has been resident in Australia for at least 12 months prior to entering into his agreement as a mariner. The respondent also referred to the applicant's lack of Australian domicile prior to the war, as a bar to relying on an argument that he was a member of the naval or military forces of an allied country. Further submissions were made by the respondent that the applicant did not meet the provisions in regard to qualifying service in s7A.

21. However, before the Tribunal can consider any argument on whether the applicant was an Australian mariner, an allied mariner, or meets the provisions for qualifying service, it is necessary, as a threshold issue, that the Tribunal have jurisdiction.

22. As identified in Re Stewart-Moore, the question of whether a person has qualifying service for purposes of a Gold Card does come within the jurisdiction of this Tribunal. This is because s175 allows for review of decisions made by the respondent under s57, which includes review of decisions that have been made in relation to a claim for a qualifying service determination under s35B (ss35(1)(a)). However, there is no provision in s175 that allows the Tribunal to review the question of whether the person meets the definition of veteran, another requirement of s85(4A) in order to qualify for a Gold Card. As the Tribunal said in Re Stewart-Moore (at p.34):

30. In respect of the other criteria specified in s 85(4A) there is, however, no right of review. In particular, there is no right of review from a decision as to whether or not a person is a veteran. That is the criterion which the Commission has decided that Mr Stewart-Moore does not meet. It is the criterion which the Commission has determined that Mr Stewart-Moore does not meet on his claim for a Gold Card. His not meeting that criterion is fatal to his claim that he is eligible for a Gold Card.

23. The Tribunal accepts the submission by the respondent, that Re Stewart-Moore and Re Bennett-Post are authorities for the proposition that where the threshold question is whether the person meets the definition of a veteran under the Act, the Tribunal does not have the jurisdiction to review the decision. For this reason, the Tribunal decides that there is no power to review the decision rejecting the applicant's claim for a Gold Card.

24. Therefore, the applicant`s claim fails and there is no need for the Tribunal to consider the other provisions in s85(4A), referring to qualifying service.

25. The Tribunal does not have jurisdiction to review the decision made on 12 December 2001, affirming a decision made by the respondent on 26 September 2001.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision herein of

Solicitor for the applicant: NIL - self-represented

Advocate for the respondent: Mr R. Douglass, Department of Veterans' Affairs